B-142804, JUNE 24, 1960, 39 COMP. GEN. 878

B-142804: Jun 24, 1960

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1960: REFERENCE IS MADE TO YOUR LETTER OF MAY 13. BIDS WERE OPENED AS SCHEDULED ON MARCH 24. HILL INDICATED ON THE BIDDING SCHEDULE THAT IT WAS OFFERING ITS " HILL" BRAND REFRIGERATOR. YOU CONTEND THAT HILL ATTACHED TO ITS BID AND MADE A PART THEREOF ITS COMPANY SPECIFICATIONS WHICH ARE INCONSISTENT WITH THE GOVERNMENT SPECIFICATIONS FOR THE EQUIPMENT. THAT: A BIDDER WHO VOLUNTARILY AUGMENTS HIS BID WITH DRAWINGS WHICH CONTAIN MATERIAL DEVIATIONS FROM THE SPECIFICATIONS MAY NOT BE GIVEN AN OPPORTUNITY AFTER THE BIDS ARE OPENED TO CLARIFY THE REASONABLE DOUBT CONCERNING HIS INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS NOR MAY THE DEVIATIONS WHICH GO TO THE SUBSTANCE OF THE BID BE WAIVED AS MERE INFORMALITIES.

B-142804, JUNE 24, 1960, 39 COMP. GEN. 878

CONTRACTS - SPECIFICATIONS - DEVIATIONS - DRAWINGS, ETC., VOLUNTARILY SUBMITTED A LOW BIDDER WHO VOLUNTARILY SUBMITTED WITH HIS BID GENERAL LITERATURE ON VARIOUS MODELS OF EQUIPMENT MANUFACTURED BY IT, WITHOUT REFERENCE TO THE PARTICULAR TYPE OF EQUIPMENT REQUIRED BY THE INVITATION OR THE MODEL INTENDED TO BE FURNISHED AND WITHOUT REFERENCE IN THE BID TO ANY EXCEPTIONS TO THE SPECIFICATIONS, MAY NOT BE REGARDED AS OFFERING OTHER THAN THE SPECIFICATION EQUIPMENT OR AS QUALIFYING THE BID AND, THEREFORE, THE BID SHOULD NOT BE REJECTED ON THE BASIS THAT THE DESCRIPTIVE LITERATURE MADE IT NONRESPONSIVE TO THE INVITATION.

TO BRANKO STUPAR, JUNE 24, 1960:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1960, PROTESTING, ON BEHALF OF THE ELLIOTT-WILLIAMS COMPANY, AGAINST THE CONSIDERATION OF THE BID SUBMITTED BY THE HILL REFRIGERATION CORPORATION UNDER INVITATION FOR BIDS NP. WA-PC-R-78511-A-3/24/60.

THE INVITATION, ISSUED ON MARCH 3, 1960, BY THE FEDERAL SUPPLY SERVICE, REGION 3, GENERAL SERVICES ADMINISTRATION, REQUESTED BIDS UNDER ITEMS 41 (A) AND 41 (B) FOR THE FURNISHING AND INSTALLING OF REFRIGERATORS AT LANGLEY AIR FORCE BASE IN ACCORDANCE WITH DETAILED SPECIFICATIONS. BIDS WERE OPENED AS SCHEDULED ON MARCH 24, 1960, AND IT APPEARS FROM THE ABSTRACT OF BIDS THAT HILL SUBMITTED THE LOWEST AGGREGATE BID ON ITEMS 41 (A) AND 41 (B) IN THE AMOUNT OF $12,291.20, AND THAT ELLIOTT-WILLIAMS SUBMITTED THE NEXT LOWEST AGGREGATE BID IN THE AMOUNT OF $12,619. HILL INDICATED ON THE BIDDING SCHEDULE THAT IT WAS OFFERING ITS " HILL" BRAND REFRIGERATOR. YOU CONTEND THAT HILL ATTACHED TO ITS BID AND MADE A PART THEREOF ITS COMPANY SPECIFICATIONS WHICH ARE INCONSISTENT WITH THE GOVERNMENT SPECIFICATIONS FOR THE EQUIPMENT. YOU, THEREFORE, REQUEST THAT THE HILL BID BE REJECTED AS BEING NONRESPONSIVE TO THE INVITATION. SUPPORT OF THAT POSITION, YOU REFER TO OUR DECISION REPORTED AT 36 COMP. GEN. 705, WHEREIN WE HELD, QUOTING THE SYLLABUS, THAT:

A BIDDER WHO VOLUNTARILY AUGMENTS HIS BID WITH DRAWINGS WHICH CONTAIN MATERIAL DEVIATIONS FROM THE SPECIFICATIONS MAY NOT BE GIVEN AN OPPORTUNITY AFTER THE BIDS ARE OPENED TO CLARIFY THE REASONABLE DOUBT CONCERNING HIS INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS NOR MAY THE DEVIATIONS WHICH GO TO THE SUBSTANCE OF THE BID BE WAIVED AS MERE INFORMALITIES.

AS YOU CONTEND, THERE WAS ENCLOSED OR ATTACHED WITH THE HILL BID CERTAIN LITERATURE DENOMINATED AS A " SPECIFICATION SHEET" WHICH NOT ONLY WAS ILLUSTRATIVE OF THE TYPE OF REFRIGERATOR IT MANUFACTURED BUT ALSO CONTAINED DETAILS OF CONSTRUCTION RELATING TO THE DIMENSIONS, MATERIALS, CAPACITIES, AND OTHER CHARACTERISTICS OF HILL REFRIGERATORS. HOWEVER, IT IS NOTED THAT SUCH LITERATURE WAS ILLUSTRATIVE OF AT LEAST FIVE DIFFERENT MODELS OF HILL REFRIGERATORS, AND NOTHING IS CONTAINED IN SUCH LITERATURE WHICH WOULD BE INDICATIVE OF THE PARTICULAR MODEL HILL MAY HAVE INTENDED TO FURNISH UNDER THE INVITATION. THUS, IT WOULD APPEAR THAT THIS LITERATURE IS GENERAL IN NATURE WITHOUT SPECIFIC REFERENCE TO THE PARTICULAR TYPE OF EQUIPMENT THE GOVERNMENT DESIRED OR THE MODEL WHICH HILL INTENDED TO FURNISH AS MEETING THE INVITATION REQUIREMENTS. THE HILL BID CONTAINED NO REFERENCE TO THE ENCLOSED LITERATURE AND NO EXCEPTION TO THE SPECIFICATIONS WAS NOTED BY HILL EITHER ON ITS BID OR ON ITS LITERATURE. IN FACT, SUCH LITERATURE CONTAINED NO LEGENDS OR OTHER REFERENCES FROM WHICH IT MIGHT BE INFERRED THAT IT WAS INTENDED TO CONSTITUTE A PART OF HILL'S BID. PARAGRAPH 2 (B) OF THE SUPPLEMENTAL PROVISIONS WHICH WERE INCORPORATED BY REFERENCE IN THE INVITATION

PROVIDED:

(B) BIDDER-SPECIFIED BRAND NAMES. WHERE DETAILED SPECIFICATIONS ARE SHOWN OR REFERRED TO IN THE SCHEDULE, INSERTION OF BRAND NAME AND NUMBERS BY THE BIDDER WILL, UNLESS OTHERWISE STATED BY THE BIDDER, BE UNDERSTOOD TO MEAN THAT THE ARTICLES SO OFFERED FULLY COMPLY WITH THE SPECIFICATION REQUIREMENTS.

WE DO NOT FEEL THAT HILL OFFERED TO FURNISH OTHER THAN SPECIFICATION REFRIGERATORS WITHIN THE PURVIEW OF THE ABOVE-QUOTED PARAGRAPH. AND WE CANNOT HOLD, UNDER THE CIRCUMSTANCES HERE INVOLVED, THAT HILL BY FURNISHING WITH ITS BID THE LITERATURE IN QUESTION AFFIRMATIVELY "STATED" THAT IT WAS OFFERING OTHER THAN SPECIFICATION EQUIPMENT. IT IS OUR VIEW THAT THE VOLUNTARY FURNISHING OF LITERATURE WITH A BID, WITH NOTHING TO EVIDENCE AN INTENT TO QUALIFY THE BID OR TO DEVIATE FROM THE ADVERTISED SPECIFICATIONS, DOES NOT RENDER SUCH A BID NONRESPONSIVE.

MOREOVER, SINCE ITEMS 41 (A) AND 41 (B) WERE NOT REFERENCED TO ANY PARTICULAR BRAND SO AS TO REQUIRE A BIDDER, UNDER THE PROVISION ON PAGE 3 OF THE INVITATION, ENTITLED " GOVERNMENT-1SPECIFIED BRAND NAMES," TO SUBMIT DATA WITH ITS BID IF IT PROPOSES TO OFFER AN ARTICLE OTHER THAN THE BRAND-NAME ARTICLE REFERENCED IN THE INVITATION, IT MAY NOT BE SAID THAT THE LITERATURE HERE INVOLVED CONSTITUTED "DESCRIPTIVE MATERIAL" WITHIN THE MEANING OF THIS PROVISION. THE DECISION OF OUR OFFICE CITED ABOVE IS CLEARLY DISTINGUISHABLE FROM THE INSTANT CASE. THE DRAWING INVOLVED IN THAT DECISION CONTAINED SUCH A QUALIFYING LEGEND AS WOULD HAVE CREATED A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE INVITATION. SUCH IS NOT THE CASE HERE.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE ACCEPTANCE OF HILL'S LOW BID CONSUMMATED A BINDING CONTRACT REQUIRING DELIVERY OF THE REFRIGERATORS IN STRICT ACCORDANCE WITH THE INVITATION SPECIFICATIONS.

WE ARE ADVISED THAT A PURCHASE ORDER WAS ISSUED TO HILL ON APRIL 28, 1960, AT ITS BID PRICE, AND THAT DELIVERY AND INSTALLATION OF THE REFRIGERATORS WERE ACCOMPLISHED ABOUT JUNE 16, 1960. ACCORDINGLY, YOUR PROTEST IS DENIED.